Guest Post: When Should the ICC Call It Quits?

[Rebecca Hamilton is an Associate in Law at Columbia Law School, and author of Fighting for Darfur.]

The close of 2014 continued to bring bleak news for civilians in Darfur. As fighting in Sudan’s beleaguered western region increased, the UN looked to reduce its peacekeeping presence there. And this on the heels of the ICC Prosecutor, Fatou Bensouda, telling the Council that in the absence of any commitment from them to enforce the Darfur warrants, the Court would be suspending its investigative activities.

As Kevin has already noted, Bensouda’s statement is a depressing insight into the moribund state of ICC-Security Council relations (not to mention another blow for survivors of the conflict). Yet as he also observed, it is heartening to see the Prosecutor laying the blame for the lack of arrests squarely where it belongs. For too long the Council has used its Darfur referral to outsource the problem to the ICC in lieu of taking meaningful steps itself.

Beyond the immediate implications for Darfuris, the ICC, or the Security Council however, there is a broader question triggered by Bensouda’s statement, and one that commentators are yet to pay attention to: Under what conditions should the ICC Office of the Prosecutor stop its activities in a given situation?

Both academics and practitioners have spent the first decade of the Court’s existence focused largely on issues related to the OTP’s commencement of activities in new situations. But as I argue in a forthcoming article in N.Y.U. J. Int’l L. & Pol., attention now needs to be directed to the question of what principles might guide the end of its operations. Given that Bensouda’s statement marks the first time an ICC Prosecutor has publicly discussed any halt to the OTP’s activities, it is worth closely scrutinizing the rationale upon which her decision is based, and considering some of the implications should the same rationale be used consistently as the basis for the temporary or permanent cessation of OTP operations in other situations.

Good faith and cooperation

Bensouda’s statement to the Council is worth reading in its entirety as a striking example of straightforward truth-telling in a setting so often filled with obfuscating diplomatic language. But in terms of using the statement to extract criteria the OTP could use to decide whether to stop its activities in other situations, there are a few key excerpts to focus on.

The Prosecutor is clearly frustrated by the lack of arrest warrant enforcement, stating that “What is needed is a dramatic shift in this council’s approach to arresting Darfur suspects.” But her concerns also seem to extend more broadly.

“In the almost 10 years that my Office has been reporting to the Council, no strategic recommendation has ever been provided to my Office, and neither have there been any discussions resulting in concrete solutions to the problems we face in the Darfur situation.”

It seems reasonable to assume that her reference to “the problems we face” includes not only the lack of arrest warrant enforcement, but also the lack of cooperation and denial of access that has plagued the Court’s Darfur investigation. As Sarah Nouwen details in her excellent book on the ICC and complementarity, the Sudanese government has refused all communications with the Court since the first Darfur warrants were issued back in 2007.

Of particular note in the above excerpt is the focus on effort, in addition to results. The Prosecutor is seeking warrant enforcement and “concrete solutions.” Yet in bemoaning the absence of even recommendations by the Council to the Court, she also seems to suggest that a good faith effort by the Council to work with the Court throughout the duration of its Darfur investigation would have gone a long way toward convincing the OTP to continue its activities in the situation.

Resource constraints

The second factor highlighted in Bensouda’s statement is the OTP’s resource constraints:

“Faced with an environment where my Office’s limited resources for investigations are already overstretched, and given the Council’s lack of foresight on what should happen in Darfur, I am left with no choice but to put investigative activities in Darfur on hold as I shift resources to other urgent cases, especially those whose trial is approaching.”

Rare is the institution that does not seek more resources. But for the OTP the issue of resource constraint is a real one. Over the past five years, the OTP’s budget has increased by 17 percent, whereas the number of situations it is operating in has increased by 100 percent [compare 2008 with 2013 budget documents]. Even before the collapse of the Kenyatta case, a sobering paper by American University’s War Crimes Research Office highlighted instances of staff burnout and an over-reliance on secondary sources, due in significant part to resource constraints that were generating concerns about the quality of the prosecution’s work.

Forced to make choices, the line that the Prosecutor is laying down seems eminently reasonable: Resources will be directed toward situations with cases that have reached, or show some prospect of reaching, trial.

Toward a standard for the cessation of OTP activities in Article 13(b) situations?

It is, at the very least, a useful thought experiment to view the rationale contained within the Prosecutor’s statement as the first articulation of criteria for when the OTP should halt its operations in a situation referred to it by the UN Security Council. Drawing together the pieces discussed above, we can construct what I will tentatively term the Darfur criteria for the cessation of activities (“Darfur criteria”):

In a world of limited resources, when the Council refers a situation to the Court, a good faith effort by the Council, yielding some success in helping the OTP secure the access and cooperation needed to conduct its investigations, and a commitment to enforcing its warrants, is required for the OTP to continue its operations.

Of course there is yet to be any indication from the OTP that it is considering establishing a uniform criteria for when it ceases its activities in an Article 13(b) situation, or any other. But the development and application of consistent criteria would yield benefits in terms of the kind of transparency that Benedict Kingsbury and others suggest is so crucial for the legitimacy of international organizations. And it would also put Council members on notice about what they need to do to for the OTP to continue working on a situation they have referred to the Court.

Libya

Turning to the Court’s other Article 13(b) referral, the Libya situation is shaping up to be somewhat analogous to Darfur. As with the Darfur situation, government cooperation initially seemed forthcoming, but then the relationship between the Court and the Libyan government rapidly deteriorated. Earlier this month the Court issued a finding of non-compliance by the Libyan government with the Court’s requests for cooperation and referred the matter to the UN Security Council. If the OTP were to apply the Darfur criteria to Libya, the Security Council would be on notice that absent a good faith effort to secure the cooperation of the Libyan government, and some concrete results in this regard, the OTP will consider ceasing its activities in the Libya situation as well.

Concluding thoughts

The Darfur criteria sketched out here is drawn from an Article 13(b) situation, referred to the Court by the Council. But one could certainly argue that similar principles could be applied to so-called “self referral” situations under Article 14. As with Article 13(b) referrals, self-referrals involve a political actor asking the Court to devote resources to a situation that the political actor has expressed an interest in seeking justice. And as with the Security Council in an Article 13(b) referral, one can generally – though not always – expect the political actor in a self-referral to have some means at its disposal to ensure both that the Court has access to investigative sites and that its warrants are enforced. The underlying principle then is that when a political actor has asked the OTP to engage, the OTP will critically examine the viability of continuing its operations if that actor is not taking the steps within its power to assist the OTP. This is, of course, consistent with the Rome Statute’s requirement of the cooperation of States Parties.

My purpose here has not been to suggest that Bensouda’s statement constitutes the establishment of criteria for when the OTP will cease its activities in a situation. Rather, I am elaborating what some of the implications would be if the OTP did decide to use her statement as the basis for a consistent set of criteria moving forward.

The development and articulation of criteria for when the OTP will stop its operations in a given situation is long overdue. The ICC was not designed to become a permanent judicial presence in every situation it enters. Much ink has been spilt in debating the criteria for when the OTP should start an investigation. It is time to devote the same level of attention to the question of when it should stop. I hope that Bensouda’s statement will spur efforts in this direction.